It is further ordered, that these rules be published in the next volume of the reports of the decisions of this court, and that the clerk cause them to be forthwith printed and transmitted to the several district courts. JANUARY 22, 1855. GENERAL RUle, No. 9. DECEMBER TERM, 1858. 21 HOWARD. [This rule has changed in some respects the Sixty-Third Rule, passed December term, 1853, 16 Howard. The changes are indicated in the notes.] First. In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term ; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term; and if the defendant in error or appellant shall fail to comply with this rule, the plaintiff in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause and certifying that such writ of error or appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court.1 Second. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of the court; and if the case is docketed and a copy of the record filed with the clerk of this court, by the plaintiff in error or appellant, within the periods of time above limited and prescribed by this rule, or by the defendant in error or appellee at any time thereafter during the term the case shall stand for argument at the term. Third. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Washington, New Mexico, and Utah. 1 In the Sixty-Third Rule, the words "or consent of the opposite party" were added. In the Sixty-Third Rule this sentence read "by either party within the periods ORDERED, That upon the filing of the transcript of a record brought up by writ of error or appeal, the appearance of the counsel for the plaintiff in error or appellant shall be entered, and no motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. RULE NO. 32. Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including "just damages for delay," and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages; or where the property is in the custody of the marshal, under admiralty process, as in the case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use or detention of the property, and the costs of the suit and "just damages for delay," and costs and interest on the appeal. RULE NO. 33. In cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served before that day; but in cases where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before that day. of time above limited and prescribed by this rule, the case shall stand for argument at the term." DISTRICT COURT RULES IN ADMIRALTY. MASSACHUSETTS DISTRICT. In cases in admiralty in which an appeal is permitted by law, an appeal may be claimed at any time within ten days, Sundays inclusive, from the time of entering up the final decree, and not afterwards, unless the court for cause shown, shall prescribe a longer or shorter time. ADMIRALTY RULE, ADOPTED JUNE 27th, 1855. In suits in personam, where the defendant cannot be legally arrested, the mesne process may be a warrant to attach his goods and chattels to the amount sued for, or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein, or by a simple monition in the nature of a summons to appear and answer to the suit as the libellant shall in his libel or information pray for or elect. FORMS. MUCH space is generally devoted in works on Admiralty Practice to forms of libels and answers; but this, we think, is, to a great extent, unnecessary. The narrative part of each libel depends so much on the particular facts of the case, that no form can be literally followed, and the commencement and close of all libels and answers are so similar to each other, that we do not deem it necessary to give more than one form, and then state the peculiarities of the different causes of action. The libel is generally entitled To the Honorable Judge of the District Court of the United States, within and for the District of According to the forms given in Dunlap's Admiralty Practice, and which are generally followed in Massachusetts, the libel begins as follows: The libel and complaint of A. B. of in the district aforesaid,1 in a cause of contract." And thereupon this libellant alleges and articulately propounds as follows." 1 1 If the libel is in rem, it must state that the property is within the district, and if it is in personam, the names, and occupations, and places of residence of the parties must be stated. 23d Admiralty Rule. 2 Or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be. 23d Admiralty Rule. This form of commencement is, perhaps, not strictly grammatical, and we prefer the form which seems to be in use in other districts, and which we have known used in Massachusetts. This omits the clause, " And thereupon your libellant," etc., and adds the words "alleges as follows." Thus making the libel allege instead of leaving the nominative without a predicate. day of 185, the said ship, whereof bound on a voyage Another form is: A. B. of exhibits this his libel, etc. And thereupon the said A. B. alleges and articulately propounds as follows. The following pleadings in a suit in rem against a vessel for nondelivery of goods will serve as a guide for all cases of contract. After one of the above headings, the libel would proceed as follows:First. That on the A. B. was master, being then in the port of upon the high seas, and on waters within the admiralty and maritime jurisdiction of the United States and of this honorable court, to wit, from the said port of the libellant [or here give the name of the shipper of the goods, if the libellant is not the shipper] being the owner of certain goods [describe them], shipped them on board the said vessel in good order and well-conditioned, to be carried, and transported in said ship to the said and there to be delivered to your libellant, or his assigns, in like good order, dangers of the sea only excepted, for the freight of per cent primage and average accustomed, to ; with to be paid by your libellant or his assigns. And the said day of master as aforesaid, at the said port of —, received said merchandise, and on the in the year aforesaid, signed two bills of lading, and delivered the same to the shipper of said merchandise. [Copies of the bills of lading should be annexed.] Second. That on or after the said ship sailed from the port of day of said for the said port of of the value of the said at which port she duly arrived and now is; but notwithstanding your libellant has been at all times and still is ready to receive the whole of said merchandise in good order, and on so receiving the same, to pay the freight and charges thereon, according to the tenor and effect of the said bills of lading, yet dollars, part of the said shipped as aforesaid, the said master has not yet delivered, but refuses so to do, and owing to the negligent, improper, and careless manner in which the said were partially transported, and for want of proper care on the part of said master and persons employed by him, the said - were thrown into the water by the bursting of the boiler, or some portion of the steam apparatus of the steam-lighter, which your libellant avers was not a danger of the sea, wherein the said master as aforesaid, was transporting said from the shore at said port of to said ship. By reason of which said casting of said goods into the water, as aforesaid, the said master did not transport to said port of the said [describe the goods not delivered] and has so informed your libellant. By reason of which non-performance of the terms of said contract, as set forth in said bills of lading, on the part of said master, as hereinbefore set forth, your libellant has sustained damage to the amount of dollars. Third. That all and singular the premises are true, and within the admiralty and maritime jurisdiction of the United States and of this honorable court. Wherefore the libellant prays that process in due form of law, according to the course of this court in cases of admiralty and maritime jurisdiction, may issue against the said vessel, her tackle, apparel, and furniture, and that all persons claiming any interest therein, may be cited to appear and answer all and singular the matters aforesaid, and that this honorable court would be pleased to decree the payment of the damages aforesaid, with costs; and that the said vessel may be condemned and sold to pay the same, and that the libellant may have such other and further relief in the premises as in law and justice he may be entitled to receive. -, Proctor for libellant. A. B. A second count might be filed in such a case, declaring on an agreement to carry the goods by the respondents, independent of the contract of which the bill of lading is the evidence. The claim may be as follows: UNITED STATES OF AMERICA : in the district of is owned by him the said and CLAIMS that the said ship son is owner thereof; and that he, the said said other owners of said ship, duly authorized to make this claim. Wherefore he prays that said ship and appurtenances may be delivered 1 Or, if the goods are delivered in a damaged condition, it is sufficient to state this fact, setting forth the nature and extent of the damage, and the burden of proof is then on the respondent to show the cause of the injury. |